Posts Tagged ‘employer employee relations’

SCOTUS Denies DOL Deference: Will it do the same for EEOC?

by HDlawblog Posted: Friday, 6/24/2016

On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.

As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.

The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.

While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.

Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.

The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.

For more information, contact an attorney at Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Sex discrimination, Sexual orientation discrimination | Comments Off on SCOTUS Denies DOL Deference: Will it do the same for EEOC?

Joint Employer Status and the NLRB

by HDlawblog Posted: Tuesday, 8/19/2014

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in NLRB, NLRB, Union | No Comments »

EEOC Tests its Guidance on Use of Criminal Records

by HDlawblog Posted: Monday, 8/5/2013

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Labor & Employment | Comments Off on EEOC Tests its Guidance on Use of Criminal Records

Another Employee Fails in Her Attempt to Pursue an FLSA Claim Involving Expressing Breast Milk at Work

by HDlawblog Posted: Friday, 12/28/2012

The passage of the Fair Labor Standards Act (“FLSA”) provision requiring employers to provide mothers a reasonable break time and private place to express breast milk has created fodder for a few lawsuits, one of which I blogged about not too long ago.  In another recent case (Miller v. Rosche Surety & Cas. Co.), the 11th Circuit, a federal court, held that a female employee who was fired after she sent a company executive an email asking where she could express breast milk, while temporarily working at a different office, did not have a viable retaliation claim under the FLSA because no reasonable jury could interpret her email as a protected complaint.  Allow me to explain:

The FLSA protects employees who engage in protected activity from retaliation by their employers.  A clear example of a protected activity would be a written complaint to an employer informing the employer that the employee believes his/her rights under the FLSA are being infringed upon and calling for protection of those rights, but rarely are complaints to employers so straightforward.  Therefore, to determine whether a complaint constituted a protected activity, the law asks whether a reasonable jury could interpret the complaint as protected activity.  And, according to a Supreme Court ruling in 2011 (Kasten v. Stain-Gobain Performance Plastics Co.) the highest court of our nation has even said that an oral complaint may trigger the FLSA’s anti-retaliation provision.  However, even an oral complaint has to have some degree of formality in order to give the employer fair notice that an employee is lodging a grievance.  Indeed, a complaint needs to be clear and detailed enough to put a reasonable employer on notice, considering the context and content, that an employee is asserting rights provided by the FLSA and calling for protection of those rights.

In the Miller case, a female employee who worked for a Florida bail bond company simply sent an email to a company executive asking about where she could use her breast pump while working somewhere other than her usual place of work.  The 11th Circuit held that this inquiry could not reasonably be construed as an FLSA complaint because the email did not put the employer on notice that the employee was lodging a grievance.  The 11th Circuit also held that the employee could not raise a triable issue regarding whether the employer violated the FLSA provision that requires employers to provide employees with a private place to express milk because the employee testified that she was given necessary breaks for this purpose and had access to a private place to do so while at her regular office.

Interestingly, the employee cited to a Family Medical Leave Act (“FMLA”) case to support her view than an employee’s “prospective request” that an employer comply with the FLSA is “protected activity” under the act.  However, the 11th Circuit distinguished the FMLA case in which it ruled that an employee’s pre-eligibility request for post-eligibility maternity leave was protected under the FMLA on the basis that the FMLA contains a provision making it unlawful for employers to “interfere with, restrain, or deny” an employee’s exercise, or attempt to exercise, any right provided by the FMLA while the FLSA lacks a comparable provision.

Finally, the employee unsuccessfully argued that because the employer monitored her email communications at work, an email that she sent to a friend under the subject line “Federal Law” that referenced the FLSA provision regarding expressing breast milk was akin to an FLSA complaint. The Court rejected this argument because the employee never showed the email to the employer and never told anyone at her company that she believed the company was violating the provision.  Therefore, the email to the employee’s friend did not effectively notify the company of her grievance.

Lesson for Employers:  Although this case ended well for the employer, employers should take issues surrounding expressing breast milk at work seriously.  In a case such as the one discussed above, the employer, knowing that the employee was pumping at work, might have chosen to proactively inform the employee where she could pump while working at the different location, which effort would have cast the employer in the best light possible.  For large employers, paying attention to the individual needs of each employee might not be possible, but larger employers might be able to designate lactation areas that eliminate the need for employees to inquire about suitable places to pump while visiting other offices or have written express breast milk policies that address how employees should handle pumping away from their regular place of work.  The attorneys at Harmon & Davies are here to assist employers with navigating issues surrounding expressing breast milk at work.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Vigilant Against Violence

by HDlawblog Posted: Monday, 4/9/2012

Workplace violence is a subject that most people do not like to discuss. After all, most times when workplace incidents make the news, they are shocking and frightening, and it’s simply easier to say “That will never happen here.” Unfortunately, that’s not always true, as nearly 2 million workers reported having been victims of workplace violence each year, with even more going unreported.

Federal laws only provide general guidance, in the form of the Occupational Safety and Health Act of 1970, which requires employers to provide a safe workplace. While workplace violence is not always preventable, there are proactive steps you can take to reduce the risks and hopefully prevent a situation before it becomes dangerous, including:

  • Training managers and supervisors on the early warning signs of potential violence and how to address them
  • Implementing a comprehensive workplace violence prevention program
  • Clearly communicating to employees that the company wants to know when there are threats or incidents, and how serious the company is about handling issues
  • Making a good faith effort to investigate complaints where there is a reasonable concern that the employee’s behavior may cause harm to themselves or others
  • Considering additional security measures (sign-in desk, key-card systems, increased lighting, and video surveillance)
  • Identifying to all employees the contact person for communicating safety concerns or incidents

It is important to note, when preparing preventative measures, that workplace violence is not limited to employees; it also includes customers, clients and visitors.

Of course, while all of these measures will raise costs, it will likely be less expensive than the costs of a workplace violence incident. A 2006 study by Liberty Mutual reported assaults and violent acts as the 10th leading cost of non-fatal occupation injuries, at a cost of $400 million. Indirect costs, though difficult to quantify can include diverted attention and resources, loss of public trust, and reputational damage. Workplace violence can result in a number of legal actions against employers, including civil litigation, OSHA citations or fines and workers’ compensation. The key, as always, is finding a balanced approach that works for your particular business.

This article is authored by attorney Casey L. Sipe and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Background Checks Aren’t For Everyone

by HDlawblog Posted: Monday, 4/2/2012

Employers routinely use background checks when hiring new employees, without considering the consequences of using them on every applicant. The EEOC’s current standing policy provides that criminal background checks should be limited to only those positions where such information is “job-related and of business necessity,” and should only seek information about convictions, not arrests.

The Fair Credit Reporting Act, in addition to providing rules regarding credit checks, imposes a number of requirements on employers seeking to obtain a criminal background check.  Before obtaining a criminal background check, an employer must disclose in writing to an individual that the report may include in-depth information about his or her character, general reputation, personal characteristics, mode of living, criminal, driving and work history.  The disclosure must be delivered no later than three days after the report was first requested and include a statement informing the individual of their right to request additional disclosures and receive a written summary of legal rights. If an individual requests additional information about the investigation, the employer must mail or otherwise provide the information within five days of receipt of the written request, or the request date of the report, whichever is later. Employers must take “reasonable measures” to protect against unauthorized access to or use of information in connection with the disposal of consumer information.

In order to prevent legal trouble, employers can take a few easy steps. Employers should have a clear reason for requiring a criminal background check, relating to the open position. For example, a position where the applicant will have access to the employer’s or customer’s money could require a background check to ensure that the applicant does not have any fraud convictions. In addition, employers should discuss the information they are allowed to consider with legal counsel, and then limit the background check to that information, so that no improper information is included in the background check, which ensures that there is no chance that improper information would be considered during the hiring process. Finally, blanket policies, where every applicant is given a background check, should be avoided. A discussion with legal counsel can provide specific guidance on when criminal background checks are appropriate, and what information can be sought.

This article is authored by attorney Casey L. Sipe and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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The Cost of Curiosity

by HDlawblog Posted: Thursday, 3/29/2012

In a growing trend, employers are asking job applicants and employees to provide login information to their Facebook pages and other social networking accounts. Many are questioning the propriety of asking for login information, particularly because an applicant or employee may believe refusing will cost them a job. However, even reviewing social media profiles, or utilizing a third-party application, to obtain information about applicants and employees may expose employers to legal liability.

Facebook has already confirmed that password sharing is prohibited under its Terms of Service. Facebook’s “Statement of Rights and Responsibilities” Section 4(8) explicitly prohibits password sharing:   “You will not share your password, (or in case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.” While violating the letter or spirit of the Facebook Rights and Responsibilities can lead to deletion of the user’s Facebook account, there are few real legal consequences for such violations. The Department of Justice regards entering a social networking site in violation of the terms of service to be a federal crime, but admitted that they would not prosecute offenders.

There are real legal dangers in asking an applicant or employee for login information, or even reviewing their social media accounts.  Many people post information on social media sites that may show a protected status (age, sex, religion, disability, genetic information, race, national origin and pregnancy), lawful off-duty conduct (alcohol or smoking), or criminal history.  Such information may be, albeit unintentionally, factored into hiring or workplace decisions. It could be particularly damaging if an employer requested access to social media accounts, and then makes a decision that detrimentally affects the applicant or employee. It simply creates more fodder for a potential lawsuit.

Employers that insist on reviewing applicant or employee social media profiles should take steps to maintain objectivity. Assigning a non-decision-maker to review the social media profiles, before passing on relevant information onto the hiring personnel, can help to prevent those making the hiring decision from relying on improper information. Employers may also want to limit their social media search to LinkedIn, because it is a professional site, which is much less likely to display improper information.

In the end, employers are generally better off not trying to obtain information about applicants and employees via Facebook and other social networks. The possibility that important information may be unearthed is greatly outweighed by the potential legal pitfalls and lawsuits a search may create.

This article is authored by attorney Casey L. Sipe and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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